What is a lease?

Where the requirements for the creation of a lease are satisfied, the lessee (the tenant) is given a personal right of occupation in the subjects (the property), a right that is only enforceable against the landlord, and not against their singular successors. (A singular successor is the person who becomes the landlord when the present landlord ceases to have this right. The most common examples of this would be where the property is sold.) 

To have this transferred into a real right, and so become enforceable against the singular successors of the contracting landlord, the tenant must take possession of the subjects. [1]

The 'possession condition' can be satisfied by the tenant physically occupying the property, or by someone else, such as the tenant's spouse, [2] civil partner, [3] or a sub-tenant, legitimately occupying it instead. Moving personal possessions in with the intention of living in the property should have the same effect. [4] It appears that there need not be exclusive possession as in England. [5]

The Requirements of Writing (Scotland) Act 1995 continues the obligation under the old legislation [6] for leases of more than a year to be in writing.

Previously, leases for a year or less could be entered into either orally or by an informal document [7]. Under the 1995 Act leases for less than a year do not need to be in writing. [8]

Advisers should note that there is a statutory requirement for assured [9] and Scottish secure [10] tenancy agreements to be provided in writing. Private residential tenants are also entitled to 'written terms'. [11] If the landlord does not provide these they can be requested. See the relevant sections for the tenancy type. 

However, it is still possible for a landlord-tenant relationship to be created where written formalities have not been observed or the parties have gone ahead without there being anything at all in writing. [12] This basically means that if the parties behave as if there were a contract between them, then the courts will uphold that contract. If an agreement meets the legal requirements of a particular tenancy then the absence of a written agreement will not change this. 

Where there is any doubt about whether a tenancy has been created, advisers should collate as much evidence as possible as to what has been agreed between parties. For example:

• how much rent has been given and received and how often 

• whether there has been any informal correspondence including emails or text messages 

• dates and times of any conversations regarding the tenancy may also be helpful, taking care to note exactly what was said by whom and whether there were any witnesses to the conversation.   

The Scots law of lease has arisen out of the common law. Many of the rules regarding the rights and obligations of the parties have their source here. If the contract between the parties or statutory provisions is silent on a given matter, common law will have effect.

It is always possible to contract out of common law rules. Where a contract provides for rights and obligations that are different from those imposed by the common law, the law will always give effect to the agreement of the parties in contract. Where, however, a contract is silent on a given matter, it will be presumed that the parties have agreed that the common law is to have effect.

There is significant legislation regarding the law of residential landlord and tenant. Statute (Acts of Parliament and Statutory Instruments) overrides both common law and contractual agreements. Unlike the position with common law, it is not possible to contract out of statutory provisions in the specific terms of the contract between two parties.